Constitution Watch 6-2011

CONSTITUTION WATCH 2011

[30th November 2011]

Constitution Drafting to Start Soon

The constitution-making process is nearing the point at which the three principal drafters will start their task of drafting the new constitution. The process has taken so long that we are sending out a synopsis of the various stages that have already been completed together with the original timeframe laid down in the GPA.

Reminder – The Process so Far

Up to the First All Stakeholders’ Conference

September 2008: The GPA was formally signed by the three principal party leaders on 15th September 2008. Article 6 GPA laid down a timetable for the preparation of a new Constitution by a Select Committee of Parliament, putting the draft of this new Constitution to a Referendum, and, assuming a YES vote, the presentation to Parliament of a Bill for the new Constitution – all within 20 months of the inception of the inclusive government. [See full timetable at the end of this Bulletin.] Integral to the process was a public consultation process to ensure the new Constitution would be “owned” by the people.

February 2009: The Article 6 timetable began to run on 13th February 2009, when the inclusive government was formed under the GPA. A perioid of two months from then, i.e. until 13th April 2009, was allowed for the setting-up of the Select Committee of Parliament.

April 2009: The setting-up of the Select Committee was announced on the 12th April. It consisted of 25 Parliamentarians, 17 men and 8 women from both the Senate and the House of Assembly, reflecting the Parliamentary gender balance and the strengths of the different parties in Parliament [MDC-T 11, ZANU-PF 10, MDC-M 3, Chiefs 1]. The members of the Select Committee attended courses on constitution making, held workshops and consulted with civil society about the process [although not many of the assurances given to civil society were adhered to]. A workplan was drawn up, together with a list of 16 constitutional themes for which thematic committees would be appointed after the First All-Stakeholders Conference. The number of themes was widely considered to be excessive and likely to make both public consultation and drafting more difficult. It was pointed out that in the South African constitution-making process there had been 6 thematic committees, and that the Chidyausiku Constitutional Commission in Zimbabwe in 1999 had worked with 8 themes.

July 2009: First All Stakeholders’ Conference held: The Select Committee managed to meet its first GPA deadline by holding the First All-Stakeholders Conference on 13th and 14th July. It was attended by 4000 delegates – these including all the Parliamentarians, nominees from political parties and civil society, and delegates chosen to represent special interest groups such as war veterans. Despite lack of organisation and violent politically-inspired disruption of proceedings on the first day and logistical problems the next day allowing for only a few hours’ consultation, the Select Committee felt able to declare the conference a success. One more theme was added to the Select Committee’s list, making seventeen in all. These themes were to form the basis of the work of the Select Committee from then on.

[After this there was a total failure to stick to the GPA timetable: From the holding of the First All Stakeholders’ Conference onwards the the constitution-making process fell progressively more and more behind the Article 6 timetable. This was a great pity. The dragging out of the process meant that talk of elections came in the middle of the belated outreach process in 2010, with the result that political party rivalry disrupted many meetings and that issues raised at some meetings sounded more like electioneering issues than constitutional ones. Long delays also meant that resource persons of the calibre of Professor Feltoe and Mr Sternford Moyo, who might have been willing to serve on thematic committees if a schedule had been set and adhered to, were lost to the process. Above all it made the whole process outrageously expensive, antagonising many Zimbabweans at a time when a pittance was being spent on health, education, housing etc.]

The Public Consultation Process

According to the Article 6 timetable the public consultation stage should have been completed by 13th November 2009. But that date came and went without the countrywide programme of meetings to consult the people even having started. Problems within the inclusive government, changes in the structure and administration of the Select Committee, funding problems and disagreements between the parties on how to proceed contributed to long delays.

September 2009: New structure for Select Committee: The Minister of Constitutional and Parliamentary Affairs announced measures agreed by the three party principals to address issues of efficiency, capacity and inclusivity of the Select Committee, which he said was “not an ordinary Parliamentary Select Committee”. Henceforth it would be a “special purpose vehicle set up to spearhead the constitution-making process”. The measures included setting up an independent Secretariat with its own office accommodation, separate from the Parliamentary administration, and a Management Committee which included the Minister and GPA negotiators from each of the parties in addition to the Select Committee co-chairpersons.

More delays Despite these measures, and the launching in December 2009 of the Independent Secretariat and the Select Committee acronym [“COPAC”] and logo, progress was slow.

December 2009: Finalisation of thematic committees: Thematic committee chairpersons [all Parliamentarians] and their deputies [all from civil society] were announced in September 2009, but members were not announced until December [There were 23 ordinary members per each of the 17 committees – making a total of 425 with the chairpersons and their deputies].

May 2010: “Constitutional talking points” – the questions or statements to be posed by the outreach teams at the public meetings – were finalised by the Management Committee, which substantially revised and simplified the draft prepared for COPAC by a team of experts. In the end, the talking points did not cover everything that should be in a constitution; experts estimate that only about a tenth of necessary content was covered.

June 2010: Public consultation stage started:[This was almost a year late – and seven months after the target set by Article 6 for the completion of the public consultation stage.] Outreach teams were deployed to the districts to begin meetings – there were 70 teams with 8 members each, making a total of 560 team members, who were a mix of approximately 30% Parliamentarians and 70% from “civil society” and included the 425 thematic committee members and 135 others. There were also support staff for each team. There teams held meetings in all the country’s 1857 wards. There were logistical problems right from the start – transport not arranged, hotel bookings muddled, not enough recording equipment distributed, etc. As a result many of the first week’s meetings had to be rescheduled. Some meetings were also postponed at the last minute to accommodate public interest in watching World Cup soccer matches on TV.

September 2010: So many Harare meetings were disrupted by violence and intimidation, coaching of participants and bussing in of outsiders that the COPAC management committee decided to repeat them at the end of October.

October 2010: The bulk of “ordinary” outreach meetings at ward level in all the country’s districts were over by the end of the month. At each outreach meeting what was said was captured by rapporteurs and their reports were validated by the team chairperson and deputy.

December 2010: Special outreach meetings for such groups as the disabled, youth and parliamentarians were concluded..

Consulting the Diaspora: COPAC promises of extensive consultation with the millions of Zimbabwean in the Diaspora were not satisfactorily fulfilled, although co-chairpersons met some Diaspora representatives in South Africa. Eventually persons in the Diaspora were able to complete questionnaires on the COPAC website [although it was only launched in August 2010] and send in written submissions.

Civil society accredited observers of the outreach meetings concluded that there had been so much manipulation of public participation in the outreach – by means including intimidation, coaching of contributors and bussing in of outsiders – that statistics reported by the outreach teams would necessarily be suspect and would need to be balanced by an assessment of the effect of those factors.

Consolidation of Results from Public Consultations

January to March 2011: The reports from all the outreach meetings – at least one from each ward, sometimes several, plus the extra meeting for the disabled, etc.[see above] into an electronic database. This involved a massive data uploading and collating process. These reports had been captured on laptop computers in accordance with a template framed by COPAC. Submissions made via the COPAC website, as well as written submissions made direct to COPAC, also had to be electronically captured and collated. This took from the beginning of January well into March, and was marred by allegations of loss of and tampering with data and omission of submissions from the Diaspora, and by the involuntary absence for over three weeks of the MDC-T COPAC co-chairperson while he was held in custody on criminal charges described as “trumped up” by his party and supporters.

May 2011 to October 2011: Compilation of ward, district and provincial reports on the public consultation data: At the beginning of May the seventeen thematic committees commenced work on synthesising all this material into ward, district and provincial reports encapsulating the results of the public consultation process for their thematic areas.

June 9th: Ward reports completed: The ward reports took longer than anticipated because it became necessary to resolve serious differences between the political parties as to the methodology to be followed in analysing the data from the outreach meetings; these differences centred on ZANU-PF wanting to just do a “quantitative” analysis [numbers for and against views on the talking points] and MDC-T wanting to also use a “qualitative” approach [taking account of factors such as incidences of coaching and intimidation, understanding of talking points and the quality of the views; e.g., if a view is expressed that the death penalty should be retained by a person who wants it also extended to all journalists who write an article opposing ZANU-PF – should that be counted?]. The ward reports then had to be consolidated into district and provincial reports. This was delayed by renewed disagreements about methodology. COPAC got stakeholders to agree to a combination of the approaches, with frequency or preponderance not allowed as an absolute determinate of the popularity or importance of a concept.

16th August: District reports completed: On 1st August the thematic committees, down-sized in the interests of efficiency and economy and in the process omitting certain controversial individuals, started work on consolidating ward reports into district reports, finishing on 16th August. They then moved on to the provincial reports, finishing in mid- September.

5th October: Provincial reports completed: The formal COPAC announcement of the completion of the provincial reports was delayed by the auditing of the provincial and district reports; this was done by a team composed of 4 representatives from each of the three GPA parties, 3 quality control experts nominated by each of the parties and COPAC data collection staff.

October 2011 – Writing of the national report: On 7th October a COPAC news release said that the writing of the national report would soon commence and that the report would have two components, the national statistical report and the national narrative report. On 27th October a COPAC press statement announced the completion of the national report and said the report would be the main document to be used by the drafters who would be tasked to draft the new constitution and that the way was now clear for planning the “actual drafting”, which would commence soon. [There have been rumours, however, that only the statistical component of the national report was satisfactorily completed, with the narrative component still not agreed between the parties.]

Reminder: Constitution-Making Timetable laid down in GPA Article 6

Article 6 of the GPA allowed a maximum of 20 months from the inception of the inclusive government on 13th February 2009 to complete the various stages of the constitution-making process, with time-limits for each stage. As article 6 was not incorporated into the Constitution by Constitution Amendment No 19, it was just a political agreement between the parties, the timetable was not legally enforceable and the parties were free to depart from it. The timetable deadlines, based on the maximum time allowed for each stage under Article 6, were:

13 April 2009 – Select committee to be set up [within two months of inception of a new Government].

13 July 2009 – Convening of the first All Stakeholders Conference [within 3 months of the date of the appointment of the Select Committee].

13 November 2009 – Public consultation process completed [no later than 4 months after the date of the first All Stakeholders Conference].

13 February 2010 – The draft of the Constitution tabled before a Second All Stakeholders Conference [to be done within 3 months after completing the public consultation process].

13 March 2010 – The Select Committee’s draft Constitution and its accompanying report tabled before Parliament [within 1 month of the second All-Stakeholders Conference].

13 April 2010 – Parliament [i.e. both Houses] concludes its debate on the Constitution and Select Committee report [within one month of tabling of draft and report].

13 July 2010 – Referendum on the new draft Constitution held [within 3 months of the conclusion of Parliament’s debate].

13 August 2010 – If approved in the Referendum, the draft Constitution gazetted as a Bill [within 1 month of the date of the date of the referendum].

13 October 2010 – The Constitution Bill introduced in Parliament [no later than 1 month after the expiration of the period of 30 days from the date of its gazetting].

.Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied